Gabler v. Marly Building Supply Corp.

70 Citing cases

  1. Simeone v. Cianciolo

    118 A.D.3d 864 (N.Y. App. Div. 2014)   Cited 15 times

    In the order appealed from, the Supreme Court, inter alia, granted that branch of the Cianciolo defendants' cross motion which was for summary judgment dismissing the complaint insofar as asserted against them. The Cianciolo defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that Steo violated Vehicle and Traffic Law ยง 1141 when he made a left turn directly into the path of the Cianciolo vehicle as it was legally proceeding westbound on 86th Street with the right-of-way ( see Moreno v. Gomez, 58 A.D.3d 611, 612, 872 N.Y.S.2d 143;Berner v. Koegel, 31 A.D.3d 591, 592, 819 N.Y.S.2d 89;Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120). Moreover, Steo admitted that he never saw the Cianciolo vehicle prior to making his left turn across the westbound lanes of 86th Street. A driver is negligent if he or she has failed to see that which, through the proper use of senses, should have been seen ( see Berner v. Koegel, 31 A.D.3d at 592, 819 N.Y.S.2d 89;Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d at 520, 813 N.Y.S.2d 120;Maloney v. Niewender, 27 A.D.3d at 426, 812 N.Y.S.2d 585).

  2. Gallagher v. McCurty

    2010 N.Y. Slip Op. 32510 (N.Y. Sup. Ct. 2010)   Cited 1 times

    While summary judgment is generally inappropriate in negligence actions ( Ugarriza v Schmeider, 46 NY2d 471, 475), the Court nevertheless concludes that the Defendant has established his prima facie case entitling him to judgment as a matter of law ( Alvarez v Prospect Hospital, 68 NY2d at 325, supra). Here, the Plaintiff's affidavit and deposition testimony demonstrate that she made a left turn directly into the path of the Defendant's oncoming vehicle, thus failing to yield the right of way to the Defendant's lawfully proceeding vehicle ( Loch v Garber, 69 AD3d 814 [2d Dept 2010]; Berner v Koegel, 31 AD3d 591 [2d Dept 2006]; Gabler v Marly Building Supply, 27 AD3d 519, 520 [2d Dept 2006]; Moloney v Niewender, 27 AD3d 426 [2d Dept 2006]). As the Defendant's car had the right of way, Defendant was entitled to anticipate that the Plaintiff would obey the traffic laws which required her to yield to the Defendant's car ( Loch v Garber, 69 AD3d at 816, supra; Berner v Koegel, 31 AD3d at 592-93, supra; Gabler v Marly Building Supply, 27 AD3d at 520, supra).

  3. Kucar v. Town of Huntington

    81 A.D.3d 784 (N.Y. App. Div. 2011)   Cited 21 times

    Vehicle and Traffic Law ยง 1141 requires that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right-of-way is entitled to anticipate that the other driver will obey traffic laws that require her to yield ( see Kann v Maggies Paratransit Corp., 63 AD3d 792, 793; Berner v Koegel, 31 AD3d 591, 592; Gabler v Marly Bldg. Supply Corp., 27 AD3d 519, 520). Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen ( see Laino vLucchese, 35 AD3d 672; Berner v Koegel, 31 AD3d at 592; Bongiovi v Hoffman, 18 AD3d 686, 687; Bolta v Lohan, 242 AD2d 356).

  4. Manjares v. Cnty. of Suffolk

    2012 N.Y. Slip Op. 32480 (N.Y. Sup. Ct. 2012)

    With regard to the County defendants' application for summaiy judgment. Vehicle and Traffic Law ยง 1141 provides that a left turning vehicle must yield the right of way to a vehicle approaching from the opposing direction (see Ahern v Lanaia, 85 AD3d 696, 924 NYS2d 802 [2d Dept 2011]; Loch v Garber, 69 AD3d 814 893 NYS2d 233 [2d Dept 2010]; Almonte v Tobias, 36 AD3d 630, 829 NYS2d 153 [2d Dept 2607]; Gabler v Marly Bldg. Supply Corp., 27 AD3d 5 19. 813 NYS2d 120 [2d Dept 2006]). However, a driver who has the right of way has a duty to exercise reasonable care to avoid a collision with another vehicle (see Bonilla v Gutierrez, 81 AD3d 581, 915 NYS2d 634 [2d Dept 2011]; Sirot v Troiano, 66 AD3d 763, 886 NYS2d 504 [2d Dept 2009]; Cox v Weil, 66 AD3d 634, 887 NYS2d 170 [2d Dept 2009]).

  5. Cruz v. Wilkins

    2012 N.Y. Slip Op. 30536 (N.Y. Sup. Ct. 2012)

    Vehicle and Traffic Law ยง 1141 requires that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right of way is entitled to anticipate that the other driver will obey traffic laws that require him to yield (see Kann v Maggies Paratransit Corp., 63 AD3d 792 [2d Dept. 2009]; Palomo v Pozzi, 57 AD3d 498 [2d Dept. 2009]; Berner v Koegel, 31 AD3d 591[2d Dept. 2006]; Gabler v Marley Bldg. Supply Corp., 27 AD3d 519 [2d Dept. 2006]).

  6. SIMMONS v. CANADY

    2011 N.Y. Slip Op. 51020 (N.Y. Sup. Ct. 2011)

    "[t]he driver of a vehicle intending to turn to the left within an intersection . . . yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right of way is entitled to anticipate that the other driver will obey traffic laws that require him to yield (see Kann vMaggies Paratransit Corp. , 63 AD3d 792 [2d Dept. 2009]; Palomo v Pozzi , 57 AD3d 498 [2d Dept. 2009]; Berner v Koegel , 31 AD3d 591 [2d Dept. 2006]; Gabler v Marley Bldg. Supply Corp. , 27 AD3d 519 [2d Dept. 2006]). Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v Lucchese , 35 AD3d 672 [2d Dept. 2006]; Berner v Koegel, 31 AD3d at 592[2d Dept. 2006]; Bongiovi v Hoffman , 18 AD3d 686 [2d Dept. 2005]).

  7. Gause v. Martinez

    2011 N.Y. Slip Op. 31491 (N.Y. Sup. Ct. 2011)

    Vehicle and Traffic Law ยง 1141 requires that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right of way is entitled to anticipate that the other driver will obey traffic laws that require him to yield (see Kann v Maggies Paratransit Corp., 63 AD3d 792 [2d Dept. 2009]; Palomo v Pozzi, 57 AD3d 498 [2d Dept. 2009]; Berner v Koegel, 31 AD3d 591 [2d Dept. 2006]; Gabler v Marley Bldg. Supply Corp., 27 AD3d 519 [2d Dept. 2006]). Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v Lucchese, 35 AD3d 672 [2d Dept. 2006]; Berner v Koegel, 31 AD3d at 592[2d Dept. 2006]; Bongiovi v Hoffman, 18 AD3d 686 [2d Dept. 2005]).

  8. Gonzalez v. Chapnick

    2008 N.Y. Slip Op. 32299 (N.Y. Sup. Ct. 2008)

    In addition, movant maintains that she also violated Vehicle and Traffic Law ยง 1163(a) which prohibits motorists from turning or moving upon a roadway "unless and until such movement can be made with reasonable safety." It is well established that "[a] driver is negligent if he or she has failed to see that which, through the proper use of senses, should have been seen" (Berner v Koegel, 31 AD3d 591, 592; seeGabler v Marly Bldg. Supply Corp. 27 AD3d 519, 520; Bongiovi v Hoffman, 18 AD3d 686, 687). Moreover, the driver with the right-of-way in this case (Laidlaw) was "entitled to anticipate that [Chapnick] would obey [the] traffic laws which required [her] to yield" (Rossani v Rana, 8 AD3d 548, 549; seeBongiovi v Hoffman, 18 AD3d at 687).

  9. Saint v. U.S.

    483 F. Supp. 2d 267 (E.D.N.Y. 2007)   Cited 8 times

    In a recent Second Department case the Court reviewed the rules with regard to a left turning vehicle at an intersection with a green light. In Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120 (2d Dep't 2006), it was held that the straight driving vehicle had the right of way and the driver "was entitled to anticipate that the plaintiff would obey the traffic laws which required him to yield to the defendant's vehicle." In Gabler the plaintiff left turning driver conceded that he never saw the defendant's vehicle prior to making his left turn and it was held that he "was negligent as a matter of law in failing to see that which he should have seen through the proper use of his senses.

  10. Fleming v. Graham

    2008 N.Y. Slip Op. 2502 (N.Y. 2008)   Cited 117 times   1 Legal Analyses

    II. Summary judgment should have also been granted because defendant and third-party plaintiff-respondent failed to yield the right-of-way to Pinstripes Garment Services, LLC's approaching vehicle. ( Galvin v Zacholl, 302 AD2d 965; Lubitz v Village of Scarsdale, 31 AD3d 618; Agin v Rehfeldt, 284 AD2d 352; Almonte v Tobias, 36 AD3d 636; Gabler v Marly Bldg. Supply Corp., 27 AD3d 519; Stiles v County of Dutchess, 278 AD2d 304; Russo v Scibetti, 298 AD2d 514; Welch v Norman, 282 AD2d 448; Cenovski v Lee, 266 AD2d 424; Troche v New York City Tr. Auth., 16 AD3d 407.) Mauro Goldberg Lilling LLP, Great Neck ( Barbara DeCrow Goldberg and Anthony F. DeStefano of counsel), and Marshall, Conway, Wright Bradley for defendants and third-party plaintiffs-respondents. I. It is for the factfinder to determine, with guidance from this Court, whether Cedric Fleming's facial disfigurement is "severe" enough to constitute a "grave injury."